Federal court strikes down portion of Utah’s polygamy law

posted at 11:01 am on December 14, 2013 by Jazz Shaw

Jonathan Turley set quite a few tongues to wagging yesterday when he published an article with the provocative title, “Federal Court Strikes Down Criminalization of Polygamy in Utah.” It involves the case of Brown v Buhman, where Turley himself is one of the lawyers involved. The introduction to his announcement certainly fanned the flames of those who follow this subject closely.

It is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country.

If the name Brown when related to the subject of polygamy is ringing a bell for some of you, that’s because the family in question is one and the same as the stars of the TLC series Sister Wives. This differs significantly from HBO’s highly successful, but completely fictional series Big Love, in that Sister Wives is a reality TV show based on the lives of actual polygamists.

Next stop on the slippery slope express, I assume, will be consensual adult incest marriages.

He followed that up with a tweet saying, “Robert Bork was right. We are Slouching Towards Gomorrah.”

But is it really as dire as all that? The decision already received a detailed look from David Kopel at Volokh, a law professor who deals extensively in First and Fourteenth Amendment issues, and he concluded that the decision doesn’t carry the type of impact implied in the title of Turley’s article, and it really isn’t so complicated.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. If X has a marriage license to A, then X can’t obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X are guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.

Rather, the case involved the unique part of the Utah statute, which defined “bigamy” to also include when X “cohabits with another person.” This criminalizes quite a lot of conduct which, these days, is pretty common. For example, X and A are civilly married. With A’s knowledge and consent, X spends some weekends at the home of his mistress, B, with whom he has sexual relations. Under the common law, this is the crime of adultery, and adultery is still a crime in some states. But as far as I know, no state other than Utah would describe such conduct as “bigamy.”

Kopel’s analysis is fairly lengthy, but definitely worth a full read if you’re seeking to understand the long term implications of this case, assuming it survives the next rounds of appeal. The decision is splitting the Utah law into two distinct sections, one dealing with whether or not a man can go obtain four marriage licenses and marry four women (or a woman marrying four men, obviously), and another which prohibits the man from marrying one woman, living with three more and declaring that he’s married to them as well. What the court struck down was the latter portion while apparently upholding the former.

The court upholds the prohibition of bigamy based largely on two cases. One is the rather obnoxious 1878 Reynolds v. United States, which based part of its conclusion on the concept that Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. But the case also clarified that the free exercise of religion did not protect religious practices that were judged to be criminal under accepted laws, including bigamy.

The more solid precedent for the decision was cited in 1989′s Employment Division v. Smith. The Smith ruling might seem a bit counter-intuitive, as it has nothing to do with plural marriage. It deals instead with two Native American employees who wanted to collect unemployment benefits after being fired for taking peyote as part of tribal religious practices. The court found – again – that violation of standing laws such as those regulating controlled substance was not allowed on the basis of the free practice of religion.

This is another of those cases which sets my more libertarian teeth on edge for obvious reasons. I have no beef with the courts continuing to find that you can’t use religion as an excuse to break other laws. Analysis of the Smith ruling could rightly lead us to compare it to someone claiming that they are followers of Aztec religious tradition and they need to cut out the still beating hearts of their enemies. The real question here – which the Brown decision doesn’t even come lose to touching – is whether or not the “established law” in question (in this case, bigamy) is actually valid. That portion brings us back to the rather offensive sounding portions of the Reynolds decision, relying on the premise that what some private, individual adults choose to do in their personal lives is somehow “odious” based on the observation that Europeans didn’t like the fact that Asians and Africans do it.

For another attorney’s take on it, Doug Mataconis examines some of the same points being made by Kopel and concludes that Brown and his family shouldn’t be found to be breaking any constitutionally valid laws, but hedges a bit when it comes to the issue of whether or not they should all be able to marry.

This logic would seem to me to be as equally applicable to the Browns as it was to Mr. Lawrence in the Texas case. If they wish to live together in the manner that they do, and as long as the relationship is completely consensual than it strikes me that it really isn’t any business of government at any level. These are all adults that we’re dealing with here, and based on the record there doesn’t seem to be anything about their relationship that has been harmful or abusive either to the adults involved or to the seventeen children that have resulted from the relationship. None of us are any obligation to morally approve of the relationship, of course, but moral disapproval in and of itself should not be a sufficient basis to make something a crime or to forbid it from happening. The Browns are choosing to live together in this manner, it appears to work out just fine for them, and there doesn’t seem to be any rational reason why how they chose to live should be considered a crime.

Does this mean that the Browns should be permitted to take the next step and established a legal polygamous marriage that would be entitled to the same legal benefits that two-person marriage is throughout the United States? That is, admittedly, a more difficult question. Recognizing a marriage legally ends up creating a whole host of rights and obligations under state and Federal law that may not translate well to multiple person marriage. That, however, is a practical observation rather than a principled one. That, however, is a question for another day because it’s not one that the Browns are raising, even if it will be one that conservative critics of the decision will raise as they react to this decision.

Doug’s point highlights one of the problems inherent with the idea of “getting government out of the business of marriage” as I’ve described it. It’s not enough to simply wave a magic wand and say that the government can’t tell anyone who (or how many) they may marry. If you do that, people will take advantage of the system at the expense of the taxpayer. The only way to really approach the problem is to expunge marriage from virtually all sections of the law, including – and especially – the tax code. There is no reason to give people special benefits (or, as in the case of Obamacare and other programs, penalties) just for being married. Removing one part without the other leads to disaster. The number of children in the Brown family doesn’t factor into it for these questions (they have 17) since that happens in two person marriages, albeit infrequently.

But with all that said, while a wildly unpopular position among many conservatives, I still think the government’s hands should be as far away from the entire concept of marriage as possible. The fears that some are expressing over the Brown decision, however, aren’t really related to this question and appear to be unfounded. The court didn’t strike down rules against actual polygamy – the practice of being licensed and married to more than one spouse – but rather laws prohibiting one from saying they are married to additional people. You can say you’re married to your lawn mower, but that doesn’t mean the government is going to recognize it or grant you any benefits based on it.

Blowback

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Comments

I’ll repeat what I said from previous thread. The portion that was struck down based on the Lawrence Verdict should never have been illegal to begin with:

Logical and legal conclusion of the Lawrence v. Texas decision. The part of the statute that got struck down made it illegal for a married couple to cohabitate with a third person and just live like they were married to that person.

Actually that part should never have been illegal.

More so homosexuality will usher in polygamy by decisions like California making three or more parents. The logical jump is that if a child has three parents wouldn’t it be better for those parents to be married and live in the same household.

What is the implication for common law marriage? Living together and representing to the community that you are married is usually considered a common law marriage subject to the same rights and privileges as a formal marriage. Seems like the cohabiting language was aimed at prohibiting polygamy through common law marriage. If it’s now unconstitutional, then that seems to open up the door to polygamy through common law marriage.

If people are willing to make it a matter of public record that they married their sister, and the mocking that would ensue, I say let them.

Zaggs on December 14, 2013 at 11:13 AM

And I say the state doesn’t need to license or sanction every weird sexual fetish under the sun.

Why should two people having sex be the overriding reason someone gets a license? Why shouldn’t a mother and a daughter living together pooling their resources, but not having sex be able to get married. Friends sure why not? Business partners, again why not?

Love is in the eye of the beholder since a platonic mother and daughter love each other. What gay marriage has said is that people having sex is what makes a marriage. If that is the case, then marriage really doesn’t need to be recognized at all by the state. Why should the state sanction and license a sexual relationship at all? The state had a compelling interest in keeping bio parents together to raise their bio children. Now that that has become legally nullified, I say state marriage is merely a vanity license plate, and we shouldn’t waste the money on it.

What is the implication for common law marriage? Living together and representing to the community that you are married is usually considered a common law marriage subject to the same rights and privileges as a formal marriage. Seems like the cohabiting language was aimed at prohibiting polygamy through common law marriage. If it’s now unconstitutional, then that seems to open up the door to polygamy through common law marriage.

Mongo Mere Pawn on December 14, 2013 at 11:19 AM

I agree, as Utah seems to be the most liberal at allowing people to live together and declare they are marriage through common law. I suspect they will either get rid of common law marriage all together or tailor it more for those in one marriage situations.

Doug’s point highlights one of the problems inherent with the idea of “getting government out of the business of marriage” as I’ve described it. It’s not enough to simply wave a magic wand and say that the government can’t tell anyone who (or how many) they may marry. If you do that, people will take advantage of the system at the expense of the taxpayer. The only way to really approach the problem is to expunge marriage from virtually all sections of the law, including – and especially – the tax code.

This would be the only logical solution but it will probably not happen. In some way the Muslims will get the courts to recognize the dictates of their ‘holy book.’ This will simply be a recognition of what is happening de facto in many cases with one ‘official’ secular wife and one to three mosque approved wives who often are on the welfare roles. When the Muslims get the green light it is easy to predict that a new Mormon revelation will soon follow.

But with all that said, while a wildly unpopular position among many conservatives, I still think the government’s hands should be as far away from the entire concept of marriage as possible.

This is going to run into the looming fight between government and the religious beliefs of individuals and institutions on other areas of the marriage front, specifically, the recent New Mexico and Colorado decisions that prevented the operators of a photography business and a bakery from denying service to gay couples seeking to get married, based on civil rights grounds.

Future suits no doubt will be coming there against religious denominations on the same grounds, threatening them with loss of tax exemptions and/or certifications for running schools, medical facilities or other charitable operations. It’s going to be hard to say in the future these groups or individuals can be punished for not adhering to the new conventional wisdom on same sex marriage but can’t be punished if they refuse to accept a demand by others for the legalization of polygamy.

So the libertarian strain to “Get Government Out of Marriage” will be countered by the demand to get government into the business of forcing everyone to adhere to the new, expanded definition of acceptable marriage, under penalty of the law. Many of those allegedly carrying the libertarian banner today will be the ones taking legal action tomorrow simply to move the goalposts on who to criminalize when it comes to both adhering and accepting non-traditional marriages.

What is the implication for common law marriage? Living together and representing to the community that you are married is usually considered a common law marriage subject to the same rights and privileges as a formal marriage. Seems like the cohabiting language was aimed at prohibiting polygamy through common law marriage. If it’s now unconstitutional, then that seems to open up the door to polygamy through common law marriage.

Mongo Mere Pawn on December 14, 2013 at 11:19 AM

Kopel says in his analysis that Utah doesn’t recognize common law marriage, so this aspect wasn’t a factor in this particular case.

There is no reason to give people special benefits (or, as in the case of Obamacare and other programs, penalties) just for being married.

Does the government not have an interest in promoting social stability? I think it does. Just like I think the government has an interest in an educated populace.

“Next stop on the slippery slope express, I assume, will be consensual adult incest marriages.”

We disallow incest because the children of such a union are thought to be much more susceptible to genetic problems. However, incest between people of the same gender has no such danger so how can you prohibit such a marriage between them and if you allow that, you will need to allow heterosexual incest as well because fairness.

Kopel says in his analysis that Utah doesn’t recognize common law marriage, so this aspect wasn’t a factor in this particular case.

Mark1971 on December 14, 2013 at 12:03 PM

I believe that Koppel is wrong:

30-1-4.5. Validity of marriage not solemnized.

(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

(2) The determination or establishment of a marriage under this section shall occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.

Analysis of the Smith ruling could rightly lead us to compare it to someone claiming that they are followers of Aztec religious tradition and they need to cut out the still beating hearts of their enemies.

It could if one’s IQ was below 65. If one can’t see the difference between doing something that causes no infringement on another’s rights and doing something that does, you’re hopelessly below that threshold.

You can say you’re married to your lawn mower, but that doesn’t mean the government is going to recognize it or grant you any benefits based on it.

I didn’t know that the TLC series Sister Wives was a really big hit with the Lawn Mower demographic. Even if it was, though, having just one human watching when the guy asserts he’s a bigamist, Jazz, makes your point about lawn mowers moronic.

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. If X has a marriage license to A, then X can’t obtain a marriage license to B. If X tricks a county clerk into issuing him a marriage license for B, then X are guilty of bigamy. This is the same in Utah as everywhere else in the United States. Thus, the State of Utah has no obligation to treat X+A+B as all being married. The plaintiffs in Brown sought no legal recognition for plural marriage.

This is just the beginning. It’ll make its way through the courts and eventually become the law of the land. There’s no reason to ban polygamy if marriage is no longer a unique relationship meant to guarantee the next generation and protect offspring.

“Next stop on the slippery slope express, I assume, will be consensual adult incest marriages.”

Wrong

The next stop will be to lower the age on consent. There are many groups at work on that very issue. Many polygamous groups feature very young “wives.” Recent fatwas on the topic bring the age of consent down very close to the single digits.

“Darger (the father in the case) added that his 25th child, a girl who was born Dec. 10, will face an entirely different future as a result of the ruling.” The Salt Lake Tribune

Which brings up the subject – how does support 25 children? Luckily, between welfare, disability payments, food stamps, Medicaid, Obamacare, Obamaphones, Low Income Housing Tax Credits, Earned Income Tax Credits, public education, meal programs, etc., etc. that will not be as difficult as it might have been.

There is no reason to give people special benefits (or, as in the case of Obamacare and other programs, penalties) just for being married.

I was going to get to this, but Kafir answered it quite nicely.

Does the government not have an interest in promoting social stability? I think it does. Just like I think the government has an interest in an educated populace.

Kafir on December 14, 2013 at 12:05 PM

Along similar lines, you also say Jazz that

But with all that said, while a wildly unpopular position among many conservatives, I still think the government’s hands should be as far away from the entire concept of marriage as possible.

I fervently disagree. Through its laws a society expresses its culture and its values, and in the absence of laws expresses its disinterest. To this end, government has a vested interest in marriage for the sake of achieving a more moral and virtuous society, in which people love and treasure one another rather than view them as merely means towards hedonistic ends.

Marriage provides for a social contract in which vows including sexual exclusivity and forsaking all others, as well as making it a lifelong commitment provide immense cultural benefits and are a testament to American values — values that we should be willing to express through our laws. With a marriage we gain a more altruistic society focused on self-betterment in service to one’s beloved, and ensure that any children produced from the relationship have a stable foundation for their upbringing. While the former is certainly beneficial, is the latter that is at the crux of why marriage exists, and why rather than fighting marriage, we must fight the enabler of selfishness that undermines marriage: divorce.

It’s no ones’ business how grown adults define their relationship with other GROWN ADULTS. I don’t care if you or I find it distasteful or immoral. It’s still none of our business.

dougless on December 14, 2013 at 1:57 PM

It is our business if they want the gov’t to recognize their relationship as Marriage because society gives benefits to married partners.

Pretty much every society has created an institutional structure in which children can be raised by their natural mother and father in a monogamous life long relationship. Marriage. And governments have recognized marriage so that they can encourage such responsible behavior (through tax breaks, benefits, etc.) on the part of a heterosexual couple towards the children that their relationship might produce.

But with all that said, while a wildly unpopular position among many conservatives, I still think the government’s hands should be as far away from the entire concept of marriage as possible.

My father, who remarried in his original Episcopal Church, had his wedding halted because he forgot the civil marriage license at home. I rushed home, got it, and then brought it back to the church so the wedding could occur.

Then, there are all those laws which are supposed to halt discrimination — such as those allowing same sex marriage and making disparagement of gays a hate crime (or, at best, a “hate incident” as the FBI puts it).

We’ve already seen in the Methodist Pavilion incident the possible legal repercussions for a church, which rents out facilities for the holding of what that church considers “sacramental marriages”, refusing to rent their facilities to two females for their ceremony. The Methodists lost. In New Jersey.

Would people use marriage to get around inheritance? Sure why not. Marriage will be used to get around the tax code. Next you will see people claiming common law marriage with roommates etc, why because people are jerks and they will use the law to screw people over.

Regarding the issue of marriage, as with so many others, the Right is more interested in enforcing Protestant Christianity at gunpoint than they are in preserving or expanding freedom. They insist the Bible is and should be the basis for our laws, and nowhere in the Bible is it stated that all men have the rights to life, liberty, and the pursuit of happiness.

In fact, the quickest way to run afoul of Republicans (and also the quickest way to run afoul of Democrats) is to find one’s own happiness in an unsanctioned and harmless fashion. To be happy and affluent or to be happy and heathen is to be a living repudiation of the prevailing moralities, and is thus an invitation for the government to make you miserable.

12 “I have the right to do anything,” you say—but not everything is beneficial. “I have the right to do anything”—but I will not be mastered by anything. 13 You say, “Food for the stomach and the stomach for food, and God will destroy them both.” The body, however, is not meant for sexual immorality but for the Lord, and the Lord for the body.

BTW, nice judgment based on YOUR subjective morals. You are no different than those that think that gays should be mocked and made to feel bad for their choices.

melle1228 on December 14, 2013 at 11:25 AM

That’s how a society enforces it’s norms. Why do you think liberals throw around the word racist the way they do. Shame and exclusion are the sticks of society, and community and acceptance are it’s carrots. Why has such pressure has been placed upon people to accept the formerly unacceptable?

If you do that, people will take advantage of the system at the expense of the taxpayer. The only way to really approach the problem is to expunge marriage from virtually all sections of the law, including – and especially – the tax code.

The system was put together when marriage was between a man and a woman, and made to help family stability.

If we turn into a ‘do whatever you like’ society, then remove all the things that support stable marriage and have each individual carry their own burden and get nothing for supporting ‘dependents’. When each of them is now forced to provide for their children without food stamps, without WIC, without subsidies, without tax write-offs, then all of those wishing to expand the ‘definition of marriage’ beyond its biological basis (for love! for the children! for husband/wife #X to be happy!) then the actual cost of that system is borne by everyone. If we devalue marriage by making it inclusive of anything beyond simple biology, then it becomes meaningless and we no longer support it as a culture for the stability it brings to life-long couples with a commitment to it.

Really, these programs aren’t geared towards that sort of society and because our government is undermining the laws of it, and is being pushed to further expand the boundaries of what is ‘acceptable’ for reasons that have little to do with societal stability, then those things meant to help stabilize society must go: they are no longer wanted and are just a source of easy exploitation for those wanting further pushing of their morals on society as a whole.

Very well. That formulation of society has a cost to it. And as all of society must bear with these few wanting to change it, then all must bear that cost that a minority of self-centered individuals want.

Marriages that were thought out, budgeted for, and had people who asked if they can make it through hard times: they will do fine.

Those who married without thinking ahead, with ephemeral reasons in mind, or just to feel good about themselves: they will suffer.

If you think there is emotional hardship in the era of straight only, man and woman marriages, just wait until you see what happens once there is no support for that institution from government.

We have spent generations not supporting a moral society and strict standards for individuals to adhere to those standards.

If people are willing to make it a matter of public record that they married their sister, and the mocking that would ensue, I say let them.

Zaggs on December 14, 2013 at 11:13 AM

The left will forbid the mocking under anti-hate laws. You can already get in serious legal trouble, not to mention fired, for mocking homosexuality or homosexuals, so that’s not much of an extension of existing practice.

Utah would never have been admitted to the Union without making polygamy illegal because of the antipathy against the Mormon Church. The church had always asserted that it was a matter of religious freedom, but the Congress outlawed polygamy anyway and would have dissolved the church, invalidated its marriages and confiscated all its properties. The church fought the law through the courts until the Reynolds decision was entered and it had no other options. Since it is one of the Articles of Faith to sustain and uphold the law, the prophet prayed about it and received a revelation that the practice should be done away with. However, some members decided that he was a fallen prophet and continued to practice polygamy after it had been abandoned. Today, anyone involved in polygamy may be excommunicated, but there are secret polygamous communities throughout the West.

The concept of “getting the government out of marriage” is to abolish marriage. If any living arrangement constitutes marriage then such a concept no longer exists. Marriage is a social institution defined in law.

It is not, as both the Progressives and Libertarians claim, an artifact of religion. Monogamous, heterosexual marriage is a Greco-Roman concept. It was imposed on the Jews by Alexander and his successors. From there it was passed on to Christianity. The Jewish people learned that such marriages promote social stability since polygamy results in a large number of unattached males. Why do you think the Muslim world is wracked by violence and social instability.

The abolition of marriage has always been a key component of the Progressive agenda. It contributes to the atomization of society that breaks down all mediating institutions between the individual and the state ultimately placing the individual at the mercy of the government. Libertarians view personal autonomy as the sin quo non of human existence. And the most important rights are not political as they claim but social rights. At the top the the Libertarian list of social rights are sexual rights. Traditional marriage places limits on sexual rights and therefore limits personal autonomy. It has to be abolished in order to make a more perfect world. I fully expect to see Libertarians arguing for the abolition of the age of consent. I can even give you their argument in advance. The age of consent leads to child sexual abuse. If we end the age of consent you won’t have child abusers. Instead they will be able search out children who want to have sex with adults. This will end the need to entice unwilling children into sexual activity. You will see this argument made by Libertarians within a couple of years.

Libertarians are fools. We know what life is like in a marriage-less society. It already exists in the inner city. It isn’t utopia. It is a Hobsian world and fertile ground for enslavement of the people by government. Why do you think Progressives want to get rid of marriage?

A recent example of the problems caused by stating that a religious belief cannot take precedence over breaking some other law comes from the instant case of the Baker who refused to bake a cake for two gays celebrating their….um…union…So the administrative judge found the baker guilty of discrimination (or some such trash) and ordered him to bake the cake. Using the reasoning from the previous cases dealing with bigamy whereby a religious belief cannot be used to “break the law”, the baker will go to jail…or bake cakes for gay couples from here on out….bad legal precedents go a long way in furthering leftist agendas… and the anti-bigamy rulings go a long way to help. We aren’t standing at the top, but rather, are midway down the slippery slope and accelerating……bigamy is practiced by musloids across the world, including here in the USA (if you think otherwise, you r ‘N idiot)…but the authorities sure aren’t gonna go after them….

So TX-96 wants abolish marriage. I presume TX-96 read my response to all of this and from that I can deduce that TX-96 is a Faux-Libertarian fool.

jerryofva on December 15, 2013 at 9:26 AM

Define “marriage”.

1) A legal contract between two people the state oversees; like many contracts?

2) A religious ceremony binding two people in a relationship under religious/moralistic views?

The problem is the word for most people means:
3) Some weird hodgepodge of the two; switching back & forth.

From the point of view of #1… I can enter a business contract with my brother; and nobody says boo. The government has no real need to control/limit the parties/relationships/etc for #1. Saying I can’t start a small business with two women (or 3 men, or whatever) would be idiotic.

From the point of #2… you have the government trying to dictate religious practices and ceremonies; and specifically determining who may or may not participate. I can’t see that being a popular argument either.

Libertarians are fools. We know what life is like in a marriage-less society. It already exists in the inner city. It isn’t utopia. It is a Hobsian world and fertile ground for enslavement of the people by government. Why do you think Progressives want to get rid of marriage?

jerryofva on December 14, 2013 at 11:02 PM

So in your view the only rational choice is to put government in control of as much of society and societal norms as possible because government is a good place to find morality, rationality, and reasonable behavior?

Your goal to avoid enslavement of the people by government is to allow the government to make their choices for them?